Eyewitness Nightmare: We’ve Convicted Countless on Evidence that is Unreliable 25% of the Time

A fundamental principal in American criminal justice is that one is innocent until proven guilty beyond a reasonable doubt. But in the past two decades, DNA-proven wrongful convictions have revealed that we’ve routinely met the standard of “beyond a reasonable doubt” with evidence that is quantifiably incorrect one-fourth of the time.

A 25 percent error rate in school has historically earned the very lackluster grade of D. A 25 percent margin of error would shutter any hospital and ground any airline. But, in the criminal justice system, most Americans, blinded by trust in the system and a popular allegiance to “tough on crime” policies, have yet to demand best practices in securing the most accurate evidence possible from those who have witnessed a crime. This is baffling in light of documented evidence that eyewitness identification is unreliable 25 percent of the time and that best practices can result in more accurate identifications.

DNA-proven wrongful convictions have supported what researchers have known about eyewitness testimony for a century: Our minds don’t work like tape recorders. Even more troubling, memory is subject to contamination that is undetectable to the eyewitness. As Brandon Garrett, University of Virginia Law School professor and author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, said in a recent Associated Press article on eyewitness policies in lineups, “It’s a very sensitive task. If you do the lineup wrong, you can actually change the memory of the face they saw.”

Presumably police have known this inconvenient fact about this important investigative tool and form of evidence. Studies have revealed that among police lineups in which an eyewitness made a selection, the eyewitness chose a non-suspect filler 30 percent of the time. If a witness fingers a police-selected colleague in the lineup, no harm is done. The police will not arrest him. However, if the witness selects a suspect who happens to be innocent, the stage is set for a wrongful conviction.

This error rate is consistent with the findings of years of pairings in both public and private labs of crime scene biological evidence, primarily from sexual assault cases, with the DNA of the suspect, usually identified by the victim. From a report by Barry Scheck and Peter Neufeld in the landmark 1996 National Institute of Justice study, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial:

“Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by state and local law enforcement), the primary suspect has been excluded by forensic DNA testing.”

The Innocence Project has consistently reported that mistaken eyewitness identification has been a contributor in about 75 percent of DNA-proven wrongful convictions.

False Justice – Eight Myths that Convict the Innocent, the book former Ohio Attorney General Jim Petro and I co-authored, explores three Ohio wrongful convictions, all resulting from misidentifications. Michael Green spent 13 years in prison before DNA proved he did not rape the critically ill patient who had identified him. Clarence Elkins spent nearly eight years in jail and prison before DNA proved that his six-year-old niece’s statement—that the man who assaulted her in the dark of night looked like Uncle Clarence—was not an accurate identification. The true perpetrator, a pedophile who lived a few doors from the crime, was identified by the DNA testing.

While DNA proved both of these men innocent, it could not save Dean Gillispie. Clothing containing biological evidence in his case was discarded. Gillispie was identified by three victims. Certainly that is foolproof evidence, right? Wrong. In a study of 190 DNA-proven wrongful convictions that included eyewitness misidentifications, multiple witnesses misidentified the same innocent person in 36 percent of the cases, according to Garrett.

I was privileged to write an article on the Gillispie case in the 2011 annual review of the Ohio Innocence Project, which detailed the flawed procedures used in his identification. They violated virtually every best practice in lineup procedures. An article in the Dayton Daily News reported that Gillispie’s photo was all but “starred and circled” in its presentation to the victims. Gillispie never wavered in proclaiming his innocence even when doing so prevented his parole. Gillispie had served twenty years in prison when U.S. District Magistrate Judge Michael Merz granted a Writ of Habeas Corpus and ordered a new trial. Subsequently, the Second District Ohio Court of Appeals vacated Gillispie’s convictions and sentences and also granted him a new trial. He was released from prison in December 2011. The Second District Court of Appeals has upheld its decision in a subsequent motion for reconsideration.

Relying on memory and eyewitness research spanning more than a century and the lessons of DNA, numerous best practices that reduce misidentification in capturing eyewitness evidence have been identified and recommended to police organizations. They have become a familiar litany for those who advocate to police and prosecutor organizations as well as state legislatures in attempts to require them as standard procedure.

These important best practices require a disciplined approach to all procedures in the identification process:

The testimony of the witness should be taken as soon as possible after the crime. Non-suggestive questioning reduces the risk of contaminating the memory. A witness to a lineup should be advised that the suspect may or may not be in the lineup and that the investigation will continue whether or not the witness makes an identification. The filler (non-suspect) persons or photos should be selected to resemble the victim’s earliest description of the perpetrator, as opposed to selections intended to match the suspect. The suspect should not stand out from the fillers, and if the former procedures have this result, the investigation should be broadened. A sequential presentation (persons presented one-at-a-time) requires the witness to make an objective—not a comparative—decision. Blind administration (the administer does not know which person is the suspect) reduces intended and unintended influence. The selection should receive no approval or reinforcement, which increases confidence in the selection, accurate or not.

These recommended procedures cost no more than suggestive procedures, unless you consider the high cost of wrongful conviction; then, of course, the recommended procedures can save taxpayers millions. Nonetheless, these attempts have too often met with resentment and resistance from police and prosecutors, bolstered by arguments that are increasingly indefensible.

Recently, a bill that would have required best practices in eyewitness procedures was passed in the Florida Senate but died after not making it to a full House vote. Scott Maxwell’s article in the Orlando Sentinel properly chastised the state’s political leaders and voters for not recognizing the importance of addressing the state’s wrongful conviction problem. Florida leads the nation in former death row inmates now exonerated (23).

Unfortunately, Florida is not alone in resisting requiring improved procedures. Even as Americans have seen increasing evidence of the frightening scope of wrongful conviction, preventable crimes perpetrated by the real criminals who escaped justice, a parade of ruined lives of the wrongfully convicted, and millions wasted in misspent taxpayer dollars, most voters remain complacent or even supportive of failed practices in criminal justice.

We’ve had too many wakeup calls. Responsible citizens must urge our elected officials to require best practices in the criminal justice system.

Jim, any after-the-verdict, rear-view look at what would have been material to the jury is, in my opinion, only subjective conjecture, which is very unfortunate when lives are at stake. We are much better off avoiding error pre-verdict.

Joint enterprise is a law used when the police cannot prove who the perpetrator of the offence was. So for example you are walking down the street with a friends or relative.Your friends/relative gets into a fight, your at the scene watching what is happening obviously thinking that it has nothing to do with you, it’s not your fight. The fight ends everyone walks away. The next day you are arrested on the suspicion of murder, you find out it wasn’t just a fight you witnessed, the person who your friend/relative fought with was fatally stabbed. You tell the police ‘ I was there but it wasn’t me’. You feel confident because you played no part, you didn’t know the person was going to be or had been stabbed.

You are then charged jointly with murder! You know you are innocent but it will go to trial. The prosecution will allege that you were part of a common purpose or plan, you were there for encouragement, you are equally guilty. The prosecution will ask if you knew whether your ‘accomplice’ had a knife, you will of course deny this, you thought it was just a fight. The prosecution will then allege that you should have known what was in your ‘accomplice’ pockets because you are best friends or relatives etc etc. The prosecution will allege you shared the same intent as the murderer, he will go on to trash your defence with his wild speculations during his closing speech. His whole speech will be intent on damaging your character because he has no solid evidence against you, he barely mentions your co-accused, he doesn’t have to, the evidence presented in court has secured his first conviction. He will save his closing speech all for you, attacking your character and making sure the jury learn that you are no scared little chicken sitting in the back of class to afraid to speak with your school teacher.

But the jury won’t take too much persuading, after all the standard of proof is set frightfully low in joint enterprise law. Your life has been placed in the hands of 12 people who don’t know one end of the law from the other. It takes a person 10 years to qualify as a barrister and yet a jury of 12 people with no law experience are expected to understand such complex laws like joint enterprise in 3-4 weeks. The jury will go on to convict you because of one or two things. 1. ‘There’s no smoke without fire’ the prosecution has done his job by attacking your character with totally unwarrented speculations, or 2. They just don’t understand the complex law of joint enterprise or worse, they can’t be bothered to work it out – after all they have sat through a rather lengthy trial. Conviction number 2, really good day for the prosecution.

Ok so now you think, ‘ I’ll appeal, I know I am innocent’. You will then be told that you can’t appeal on the basis of your innocence. Why? Because jury’s don’t get it wrong. The fight you will have on your hands to over turn your conviction will be way bigger than you can ever imagine. Why? Because the ‘Justice System’ don’t like to admit they have made a mistake. You will still fight though there is nothing left for you to do apart from a sentence for a crime you haven’t commited. Things will get a whole lot worse before they get even a smidgen better. The newspapers will print that you are a murderer, that you joined in with the fight. They will crush any chance of people believing you, you will feel trapped. Because you keep maintaining your innocence you will stand little chance of parole. Why? Because maintaining your innocence is not showing remorse therefore you are not rehabilitated because you are not sorry for a crime you did not commit.

Someone said to me not long ago that juries should be told how difficult it is to have a murder conviction over turned. Some Juries will more than likely go on to convict under the illusion that if they got it wrong a higher court will correct their mistakes. This is wrong, courts do not like to over turn convictions and admit their perfect system is wrong.

Other people are serving life sentence’s because of simply using their mobile at the wrong time. Another is serving a life sentence for being a good samaritan, unfortunately all he did was offer the wrong person a lift. Another person is serving life because he was asked to burn out a car for the insurance money, little did he know that the car had been used in a murder, and there you have it – another miscarriage of justice.

This is joint enterprise, I know you will probably not believe what you are reading but these things happen, this is real life. If you think Joint Enterprise will never affect you think again! Remember all you have to do is be in the wrong place at the wrong time or even innocently use your own mobile phone. This law is unjust and is crying out for an amendment that will set the standard of proof extremely higher than what it is now. But don’t worry I know you will be thinking this simply couldn’t happen to you….. Could it?

NC is one of the few states with guidelines in place for proper witness ID procedures, but we still aren’t following them. A man (Jason Young) was recently convicted based on very weak circumstantial evidence, no physical evidence linked him to the murder. A woman clerk at a gas station told investigators that the accused was in her store at 5:30AM the morning of the murder. They didn’t even show her a photo line-up. They told her they were looking for this man and showed her one photo. A month before the trial she was asked questions at a hearing and she described him as short and with thinning hair, neither of which were correct. Nonetheless, she testified and he was convicted. If we’re going to implement guidelines, they will only work if police actually follow them.

Thanks for the informative article. I read this blog every day for the outstanding articles.